Protection of civilians . compliance . accountability

Where next for M23’s Bosco Ntaganda?

Last Friday, the United Nations Office of the High Commissioner for Human Rights (OHCHR) made known its concerns that the M23 rebel group is forcibly recruiting civilians into its ranks.

I have posted on this blog before about the continuing impunity of Bosco Ntaganda for his crimes in the East of the Democratic Republic of Congo (here and here). Bosco Ntaganda (aka ‘The Terminator’) is thought to be the mastermind behind the M23 rebel group which broke away from the Congolese national army (the ‘FARDC’) earlier this year, and has been rapidly gaining territory ever since. The M23 rebel group is reported to be made up of rebels who previously belonged to the CNDP (National Congress in Defence of the People). The CNDP is the rebel group which was was formerly led by Bosco Ntaganda which was integrated into the FARDC in 2009, pursuant to a peace agreement dated 23 March (hence the group’s name ‘M23’).

Prior to the peace agreement in March 2009, the CNDP had been accused of serious atrocities in the region, including war crimes. Its integration into the national army in 2009 – although controversial – was explained as being the ‘price of peace’.

Background to Bosco Ntaganda

Bosco Ntaganda is currently the subject of two arrest warrants from the International Criminal Court for crimes committed in the context of the conflict in Ituri between 1 September 2002 and the end of September 2003 (click here and here for these arrest warrants). The ICC arrest warrants allege that Bosco Ntaganda was responsible for the war crimes of conscripting and enlisting children under 15 years old, using them to participate actively in hostilities, rape, murder, sexual slavery, pillaging and the crimes against humanity of murder, rape, sexual slavery and persecution.

Despite the outstanding arrest warrants from the ICC, Bosco Ntaganda remains at large in the East of the DRC and allegations of his involvement in war crimes and crimes against humanity continue to pour in.

Allegations of forcible recruitment of civilians

On Friday, the OHCHR made known that it has collected evidence suggesting that over 100 civilians have been recruited by the M23 since April this year. According to the OHCHR, the M23 is forcibly taking civilians from their villages to military camps where they are subjected to a brutal ‘training’ process which involves beating and the infliction of harsh punishments.

According to the evidence that has been gathered by OHCHR, most of the civilians are aged 24 and under, and some are as young as 13. There are also multiple reports of civilians who resist recruitment being executed.

Regional involvement in the conflict

The situation in the East of the DRC is complicated by the involvement of DRC’s neighbours, Rwanda and Uganda. Last week talks about how to respond to the M23 group between the DRC and neighbouring Uganda and Rwanda failed, strengthening the position of the M23 rebels.

While Uganda and Rwanda were pushing for the creation of a military force made up of regional armies, the DRC preferred the mandate of the United Nations Mission in the DRC (MONUSCO) to be strengthened. The DRC’s apprehension in this regard is understandable. Last time the DRC consented to the presence of Ugandan and Rwandan troops in its eastern border area, they long outstayed their welcome. Added to that is the fact that Rwanda is widely believed to be financially backing the M23 rebels, an allegation which was first made in an addendum to a report by the United Nations Group of Experts on the DRC.

The UN report accused the Rwandan government of the following acts:-

• Direct assistance in the creation of M23 through the transport of weapons and soldiers through Rwandan territory

• Recruitment of Rwandan youth and demobilized ex-combatants as well as Congolese refugees for M23

• Provision of weapons and ammunition to M23

• Mobilization and lobbying of Congolese political and financial leaders for the benefit of M23

• Support to several other armed groups as well as Forces armées de la République démocratique du Congo (FARDC) mutinies in the eastern Congo

• Violation of the assets freeze and travel ban through supporting sanctioned individuals.

Since the UN report was published, the US, UK, German, Dutch and Swedish governments have suspended significant amounts of foreign aid to Rwanda, which denies the allegations.

In late July, Stephen Rapp, who leads the US office of Global Criminal Justice, was quoted by the Guardian newspaper as saying that Kagame and other implicated Rwandan government figures could face charges from the ICC, for the M23’s crimes in Eastern DRC. Stephen Rapp’s comment was quickly picked up on the newswires around the world.

The US Embassy in Kigali responded by saying that the Guardian had misquoted Rapp. They said that he had been talking in the abstract and had merely referred to the precedent set by the judgment against Charles Taylor, where a head of state had been held accountable for assisting rebel forces in a neighbouring country. Yesterday, Rapp himself told media in Kigali that the Guardian had misrepresented him in its article. He also stated – rather mysteriously – that there is no evidence that the M23 has committed war crimes. This second statement flies in the face of mounting evidence collected by organizations with a presence on the ground, such as OHCHR, MONUSCO and HRW.

After the Guardian article, the Head of the ICC’s Jurisdiction, Complementarity and Cooperation Division was also quick (perhaps too quick – see discussion of this on Opinio Juris) to assert that the ICC Prosecutor’s focus is on Bosco Ntaganda, and not on Rwanda.

Yesterday Kagame opponents announced that they are going to travel to The Hague this Friday to ask the ICC to press charges against Kagame, for his alleged involvement in the acts of M23.

What next for Bosco Ntaganda?

The M23 announced on the 6th August that it was ready for peace talks with the DRC government. It said that it wanted the government to respect the peace agreement which was signed by the DRC government and the CNDP on 23rd March 2009.

The DRC government responded on 9th August by saying that it will not negotiate with the M23 as it does not want them to survive as an ‘ideology’ and on that basis, it said, there is ‘nothing to discuss, to negotiate’.

In the light of this seeming impasse, it is hard to see where the conflict is headed to. That notwithstanding, there are a number of actions which could be taken which might assist in reducing the armed group’s hold in the region. First amongst these must be measures designed to prevent the M23 group receiving assistance from neighbouring States. France is currently petitioning the Security Council to issue tough sanctions against Rwanda for its involvement in the conflict. These would involve travel bans for Rwanda’s leaders and arms embargos. Yesterday, Sweden was the fifth country to suspend aid packages to Rwanda, in response to the allegations. Such measures cannot help but ramp up the pressure on the Kigali government to stop supporting the M23.

Secondly, all efforts must be made by the DRC and MONUSCO to arrest Bosco Ntaganda. In 2010, MONUC claimed that it did not have authority to execute the ICC arrest warrant against Ntaganda, without the DRC’s explicit consent. As a result of this – and because the DRC had clearly withheld its consent in this instance – Ntaganda lived in luxury, while the MONUC did nothing to arrest him (For further reading on the enforcement of arrest warrants by international bodies, see article by Han-Ru Zhou here).

In doing so, the DRC government was clearly deliberately protecting Ntaganda from the reach of the ICC. Its motivations for this were not clear: either it felt that this was the only way to give peace a chance in the region or because Ntaganda was holding the DRC government ransom by threatening to defect with soldiers from the CNDP if it attempted to arrest him. Certainly, Bosco Ntaganda’s defection from the FARDC in April 2012 was widely reported to be connected to the DRC’sdecision to arrest him earlier this year.

But with morale among the DRC army low and its forces poorly equipped, those working in the region are saying that there is a “grim feeling that history is repeating itself”. Paul Rigaud Programme Director for Africa for Amnesty International commented that the power dynamics in the region looking increasingly as they did in 2008 with ex-CNDP members “managing to control several strategic axes as they did in 2008”. If this is so, it may be that the same parties will soon find themselves back at negotiating table. And on the basis that the DRC government has already shown itself willing to sacrifice justice for peace once when integrating the CNDP into the FARDC in 2009, all efforts must be made to ensure that this does not happen again (for further reading on the peace vs. justice debate see e.g. here and here).